Doyle v. United States

• Decision Date: 23 November 1977
• Docket Number: Civ. A. No. 75-1781,75-1783.
• Citation: 441 F. Supp. 701
• Parties: Patrick J. DOYLE, Administrator of the Estate of John White Fulton, Deceased, Plaintiff, v. UNITED STATES of America and the South Carolina State Highway Department, Defendants and Third-party Plaintiffs. Carol Lynn FEAGA, Plaintiff, v. UNITED STATES of America and the South Carolina State Highway Department, Defendants and Third-party Plaintiffs.
• Court: U.S. District Court — District of South Carolina

441 F. Supp. 701

Patrick J. DOYLE, Administrator of the Estate of John White Fulton, Deceased, Plaintiff, v.UNITED STATES of America and the South Carolina State Highway Department, Defendants and Third-party Plaintiffs.

Carol Lynn FEAGA, Plaintiff, v.UNITED STATES of America and the South Carolina State Highway Department, Defendants and Third-party Plaintiffs.

Civ. A. Nos. 75-1781, 75-1783.

United States District Court, D. South Carolina, Charleston Division.

November 18, 1977.

As Amended November 23, 1977.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

William S. Cowan, Georgetown, S. C., for plaintiff Doyle.

D. A. Brockinton, Jr., Charleston, S. C., for plaintiff Feaga.

John T. Shepherd, Admiralty & Shipping Section, Dept. of Justice, Washington, D. C., for defendant United States.

Ellison D. Smith, IV, Charleston, S. C., for defendantSouth Carolina State Highway Dept.

ORDER

BLATT, District Judge.

These cases, consolidated for trial and heard by this court on March 28-31, 1977, arise from an October 9, 1974, collision between a motor boat operated by one John White Fulton, plaintiff-Doyle's decedent, in which plaintiff, Carol Lynn Feaga, was riding, and the guide cable used in the operation of the South Island Cable ferry.The Doyle complaint filed October 9, 1975, sought recovery against the United States and the South Carolina Highway Department, as joint tort-feasors, for the wrongful death of the aforesaid John White Fulton.The Feaga complaint, filed on the same day, sought recovery for personal injuries against the same defendants.The defendants answered, denying liability, and, at the same time, asserting cross-claims against each other for contribution.Prior to trial, the plaintiffs settled their claims against the defendant, South Carolina State Highway Department, and on March 18, 1977, both defendants dismissed with prejudice their respective cross-claims for indemnification or contribution.This series of acts left for trial the claims of both plaintiffs against the defendant, United States of America.Having heard the testimony, studied the exhibits, and, at the request of all parties, visited the scene of the collision, the court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

A.Background and Description of Ferry, Approaches, and Area.

(1) Prior to 1900, as part of the construction of the Intracoastal Waterway, the United States Corps of Engineers (Corps) dug a canal in Georgetown County, South Carolina, from Winyah Bay to the Santee Delta.This canal, known as the Estherville-Minim Canal, runs generally in a north-south direction and separates South Island on the east from the remainder of Georgetown County on the west.After completion of the canal, access from the mainland to South Island was afforded by the construction of a wooden bridge, which bridge was destroyed many years ago; thereafter, access to South Island was made available by ferry boat.

(2) The Intracoastal Waterway is a part of the navigable waters of the United States and is a highway for barge and pleasure boat traffic.Since its original construction, the Corps has dredged and maintained the canal, which is approximately 300 feet wide.

(3) Approximately 5,000 vessels, mostly pleasure boats, use the canal each year.The average speed of the vessels varies with the type and size of the vessel; however, thirty-five miles per hour is a speed often utilized by boaters proceeding through the canal.

(4) The cable ferry presently in use was partially reconstructed in 1968.The water at the site of the ferry is subject to the ebb and flow of the tide; therefore, the ferry boat is stabilized by a 5/8 " steel cable which is permanently attached to the mainland side of the canal.The ferry boat, which is docked on the South Island side when not in use, is manned by one operator, and when a crossing is desired, the operator activates an engine located on the "hill", or high ground of South Island, directly behind the ferry mooring, which causes the guide cable to become taut and rise to a horizontal position several feet above the water.The ferry boat is fifty feet long, twenty feet wide, and weighs approximately twenty tons.It is propelled by the use of a cable propulsion system which employs an eight horsepower engine to activate a double drum which, in turn, pulls the ferry back and forth across the waterway.When the ferry is not in use, the guide cable is lowered to the bottom of the waterway.Constant exposure to salt water causes the guide cable to have a muddy, brown hue.

(5) As approached by a boater proceeding generally south on a fall afternoon, the rust colored steel guide cable, when above the surface of the water, blends into a background of marsh and trees; and in the late afternoon, the sun, if shining, creates a glare on the water surface and tends to blind a boatsman proceeding in that direction.After the ferry boat moves from the island to the mainland side, there is ample waterway behind the ferry for a vessel to pass; however, the cable abaft the ferry remains taut and obstructs all passage on the waterway.The ferry boat operator can lower the cable only after returning to the island side, exiting from the ferry, and pulling the control switch.On a normal trip, the cable is taut one to four feet above the waterway for approximately five to ten minutes.During a typical twenty-four hour period, the ferry makes twelve to twenty round trips to the mainland.

(6) In 1947, the South Carolina Highway Department, pursuant to an Act of the South Carolina General Assembly — (now S.C.Code § 57-15-140(1976)) — assumed the operation and maintenance of this ferry.

(7) In January, 1967, the State Highway Department erected, upstream and downstream of the cable, signs warning of the ferry's presence.The 4' × 6' signs were on both sides of the channel and stated simply, "Caution — Ferry Crossing-.10 mile."These signs completely failed to inform boaters of the danger posed by the taut cable when the ferry was in operation.Five red flashing lights were located on the ferry boat, and a warning siren could be sounded by the operator from the island side, but this siren was not usable after the ferry had commenced a trip.

(8) The ferry is capable of transporting two automobiles with passengers across the waterway.The operator's cabin is on the south side, in the center of the ferry, and it contains a manual throttle for activating the engine.The operator, from his cabin, has a clear view of boats approaching from the south.When boats approach from the north, the operator has an unobstructed view except when, as was the case on October 9, 1974, the ferry is transporting a loaded pulpwood truck, and this type of transportation was provided on a regular basis.Proper distribution of weight required loaded pulpwood trucks to be situated in the middle of the ferry boat, and this blocked the operator's view of boats approaching from the north.Once the ferry left the island side, the operator could neither warn approaching traffic of the cable nor could he lower the cable.

(9) From 1955 to 1975, approximately 75 to 100 accidents involving the ferry occurred.Most of the accidents were minor and involved pleasure boats colliding with the cable.For the years 1971 to 1975, the South Carolina Department of Marine and Wildlife Resources investigated seven accidents involving collisions between boats and the cable, and the United States Coast Guard was provided with copies of these reports.The United States Coast Guard for that same period investigated five accidents — (two of which were also investigated by the State agency).Both the South Carolina Highway Department and United States Coast Guard personnel testified that the cable ferry, as it existed on October 9, 1974, constituted a hazard to navigation; to the same effect was the testimony of the South Carolina Marine and Wildlife Resources Department personnel.

B.Accident and Injuries.

(10) Shortly before 5:30 p. m., on the afternoon of October 9, 1974, a 19 foot motor boat, traveling south along the Intracoastal Waterway, exited from Winyah Bay in Georgetown County, South Carolina, and proceeded in a southerly direction through the Estherville-Minim Creek Canal.John W. Fulton, a 31 year old real estate developer, and Carol Lynn Feaga, his 19 year old fiancee, were traveling from Ocean City, Maryland, to Vero Beach, Florida, to make arrangements for their upcoming honeymoon.They were to be married on November 2, 1974.

(11) The tide was falling, the water calm, visibility clear, the sun was at a 30° angle in the southwestern horizon, and the weather was balmy.

(12) As the Fulton boat approached milepost 410.6 of the Intracoastal Waterway, the cable ferry connecting South Island and the mainland was transporting a loaded pulpwood truck from the island to the mainland side.The lights on the ferry boat were flashing, thereby increasing the hazard created by the cable as such lights directed attention to the ferry boat.The loaded truck totally obscured the operator's view of Fulton's approaching boat.As he approached the ferry, Fulton was traveling between 25 and 35 miles per hour.Fulton, apparently seeing the ferry boat more than two-thirds the way across the canal, which channel was approximately three hundred feet wide, attempted to pass behind the ferry; he never slackened his speed, or veered from his course, and there is no evidence that he ever saw the slender guide cable stretched taut across the waterway behind the ferry.

(13) The bow cleat of Fulton's boat caught the cable, causing the bow to rise almost vertically out of the water.The cleat then tore off, and the boat fell forward into the water causing the guide cable to strike Fulton's forehead just above the eyes, severing the top of his head.Fulton died instantly.The unpiloted boat continued south approximately one hundred yards into...